Legal Issues and Information

One of the most confusing (and frightening) areas for many
beginner filmmakers is dealing with legal issues. The process of
making a movie involves many contracts, legal forms, and in some
unfortunate situations, lawsuits. So it’s very important to find a
good lawyer to guide you through the entire process. In this
section you will find some helpful legal tips, resources, and an
assortment of standard documents for many situations you may
encounter. But please note that nothing here is meant to act as
actual legal advice. You should contact your lawyer before making
any decisions, and communicate with the local unions and government
offices for the latest information.

The Story

The source for story material comes to a producer in many forms:
life stories, historical events, novels, short stories, plays,
comic books, original screenplays, magazine articles, a verbal
pitch or an idea.

What is Copyright?

Copyright is a form of protection provided by the laws of the
United States (title 17, U.S. Code) to author of "original works of
authorship," including literary, dramatic, musical, artistic, and
certain other intellectual works. If the literary work is an
original creation, then it is automatically protected under
copyright law. Simply, you own a copyright in your work when you
write it.

But what if your work is based on other material like a true
story or book? In these instances you do not own the copyright in
the underlying material, the work that existed before you began
writing, but you do own copyright in your additions and
creations.

There is only one exception to this rule: when you
"write-for-hire." In this case, when you are hired to write a
project the copyright in the material you produce is owned by the
employer who hired you.

What is Infringement?

Copyright established ownership in a literary work, which
provides the owner protection from unauthorized use of the
copyright owner's material. If an owner's copyright is violated it
is called infringement. Examples of infringement where the owner
has the right to sue are unauthorized copying and adaptations of
their work. They key to prove infringement is to establish
similarity between the works and that the infringer had access to
the work before they put pen to paper. The defense to any
infringement suit of course is to prove the independent creation of
the material.

You should be aware that it is customary to license song rights
for movies. If an established song is quoted at length in your
screenplay and is the basis for your script be sure to get
permission.

Generally you should not plan on making someone else's song or
material a key part of the screenplay you want to copyright.

Registration

The most common way to establish proof of creation is to
register your work with the U.S. Copyright Office. Note:
Registration is not necessary for copyright protection of original
work but it helps to prove when the work was created. It follows
that the earlier you register your work, the earlier you will
establish creation. You can also accomplish the same goal by
registering your with the Writers Guild of America (WGA). For a
submission fee of $20.00 the WGA maintains a script registration
service for members and non-members. For more information call the
WGA at 323-782-4500.

The copyright registration is also very straightforward. Write
to the Copyright Office, Library of Congress, Washington, DC, 20559
and request a PA Form. Complete the form and submit it along with a
copy of the material you want to protect. For current information
and fees visit their website at www.copyright.gov or call
202-707-3000.

Titles are not protected by copyright. They're protected by
common sense and an occurrence labeled "secondary meaning," that is
when a title becomes established in the public mind. Don't name
your screenplay using an already established title like
"Braveheart." It's not illegal just an obvious rip-off.

Ideas are also not protected by copyright. Copyright protection
covers the expression of an idea never the idea itself. The moral
to this story is; be careful not to blurt out your idea at a party.
Hollywood is unique however in this regard and has attempted to
establish some laws to protect the theft of unique ideas. A letter
of agreement may be established before the disclosure of an idea if
it is made clear that the person will be paid if his idea is
used.

The reality for a newcomer to the business though is that a
producer doesn't want to agree to anything until they hear the
idea.

Droit Morale

If a producer or studio is interested in purchasing your
screenplay all American contracts require the author to waive his
right of droit morale. Droit Morale ("moral right") is a European
concept that limits the changes that the buyer can make to the
author's work. Studios or production companies do not accept the
concept of droit morale. They paid you for it so they can do
anything to it. You, as the author have no choice. Following is an
example of the moral rights close common in writer's
agreements:

Owner hereby waives the benefit of any provision of law known as
"droit morale" or any similar laws and agrees not to institute,
support, maintain, or authorize any action or lawsuit on the ground
that any motion picture or sound records, or other items produced
hereunder in any way constitute an infringement of any Owner's
"droit morale" or a defamation or mutilation of any part thereof,
or contain unauthorized variations, alterations, modifications,
changes, or translations.

Chain of Title

Studios will be hesitant to get involved in any project where
there is doubt to the ownership of a script. Some writers and
producers are known to "cloud" the chain of title by claiming
similarity to their own written work or prior rights to a project
casting doubt on ownership. The removal of this "cloud' usually
requires making a deal with the person who has successfully been
rewarded for throwing a wrench into the process. Studios want a
clean chain of title establishing that the seller of a screenplay
owns it. If the screenplay is based on a novel or short story,
studios want to see proof that the owner of the screenplay has
obtained the rights to the book.

The threat of possible infringement suits brought against
producers is one reason why most production companies and studios
will not accept unsolicited scripts. Most producers only accept
screenplay submissions from agents. If a writer does not have
representation he/she can still get their screenplay read by
sending a query letter to a producer that gets them excited enough
to contact you and request your script. Click here for FAQ's on
query letters. By sending a signed release form along with your
script they will read your script.

Material Based on Fact

There are many problems when writing about actual persons and
real events. Although a dramatization based on real events and
fictionalized true stories are protected by the First Amendment you
have to be very careful that your depictions do not violate other
people's rights. These violations include; defamation, right to
privacy, right to privacy by depiction of an actual person in false
light, and violation of a person's right of publicity. If your
story injures someone's reputation, discloses facts not already
know to the public, fictionalizes a recognizable character, or uses
the name or likeness of a well know public figure consult a lawyer
before you even think about writing it.

Novel Adaptations

Motion picture rights to a novel are normally retained by the
author not the publishing company. It is the producer's job to find
out who holds the motion picture rights to the novel. To ensure you
are dealing with the actual owner of the rights you can search the
records in the U.S. Copyright Office to determine if the novel has
been registered and who without a doubt the owner is. To acquire
the film rights contact the owner directly to negotiate a deal. If
it's the author it is customary to contact their agent.

Since most producers have limited funds they usually attempt to
obtain an option to purchase the motion picture rights. "An option
is the exclusive right, for a specified period or time, to acquire
the rights at a specified price." Options on books are generally
longer than options on original screenplays because the producer
needs to have more time to develop the property and have a
screenplay written before being able to approach potential
investors and distributors. The option agreement between the author
and producer is called the "Literary Purchase Agreement." The
option price for a novel or original screenplay can range anywhere
from $500 for an unknown writer to 1 million for a well-known
best-selling author. The initial payment is usually 5 to 10 percent
against the full payment agreed upon if the option is
exercised.

Unions

Most independent movie producers agree to enter into collective
bargaining agreements with unions when producing their film. The
unions use their collective bargaining power to establish rules and
regulations for working conditions and most importantly minimum pay
schedules for their members. The major unions that affect
theatrical motion pictures are the Directors Guild of America
(DGA), the Writers Guild of America (WGA), the Screen Actors Guild
(SAG), the International Association of Theater and Stage Employees
(IATSE) and the Teamsters.

Clearance Procedures

The Clearance Procedures provided below are intended to provide
a general guideline to the steps which should be followed by the
producer ("Filmmaker") of a film short. A 'cleared' film is a film
that can be distributed, performed, copied, and otherwise exploited
by Filmmaker (or its licensees/distributors) without infringing or
violating, and without the likelihood of a claim of infringing or
violating, some person or some entity's rights. Without proper
clearance, a film is generally not distributable. Distributors will
require the Filmmaker to make warranties as to the clearance of
Filmmaker's Film for the rights Filmmaker grants to the
distributor, and provide supporting documentation. Proper film
clearance is an integral part of film production. It is advisable
to spend time and money securing proper clearances for your film
before you start shooting. It is usually easier and cheaper to spot
and avoid problems up-front than to pay damages or be subject to
the threat of an injunction after a problem occurs and a Film is
already in distribution.

The procedures listed here are of course not exhaustive and do
not cover all of the situations that may arise in connection with
any particular Film. Rather than guess about how to handle a
particular problem, or what to do if one of the procedures listed
below doesn't quite seem to fit your project, the Filmmaker should
consult his or her own attorney.

In General

The Filmmaker should continually monitor the Film at all
stages,from inception through final cut, with the objective of
eliminating material that could give rise to a claim. The Filmmaker
is strongly advised to engage the services of an attorney
experienced in clearance procedures, to work closely with Filmmaker
in the implementation of these procedures. If the film is to be
covered by Errors and Omissions ("E&O") insurance, the
insurance carrier will generally require that an attorney be
retained for this purpose.

If the intent is to exploit the Film over the internet, or on
videotapes, videocassettes, videodiscs or other new technology, the
rights to manufacture, distribute and release the Film using these
mediums should be obtained from the writers, director, actors,
musicians, composers and others involved, including proprietors of
underlying materials. It is also important for the Filmmaker to be
aware of any guild obligations if using union members in your film.
Guild agreements contain a number of provisions that the Filmmaker
will be bound by to (e.g., minimum compensation requirements,
crediting requirements, recognition of certain creative rights,
work hour restrictions). Guild agreements also contain provisions
that future distributors will be bound by (e.g., residual/reuse
fees, supplemental market payments, limitations on the right to use
clips, etc.).

Avoid Litigation. Consideration should be given to the
likelihood of any claim. Is there a potential claimant portrayed in
the Film who has sued before or is likely to sue again? Is there a
questionable copyright or other legal issue? Is the subject matter
of the Film such as to require difficult and extensive discovery in
the event of necessity to defend? Are sources reliable? Before
relying on using a work or part of a work because of "fair use" or
"public domain" the Filmmaker should consult an experienced
attorney to ascertain whether these concepts truly apply. The
Filmmaker should use this information to take all reasonable steps
to avoid any possibility of a claim.

Prior to Filming

Script Clearance. The script should be read and
thoroughly reviewed prior to commencement of the Film to eliminate
potential infringement threats in regard to;

1. Portraying a particular individual or a small or moderate size
group of real individuals (e.g. living or dead), or an existing
business or other entity, in an arguably light they may cause
injury to their reputation, and 2. Offensive, or revelatory facts
about that individual or group not generally known by the public.
Where the Film is fictional in whole or in part, the names of all
characters shall be fictional. It is important to submit the script
to a script clearance company, as discussed in the next paragraph,
to avoid inadvertently using a real person's name as the name of
your fictional characters. The script writer should be interviewed
concerning his characters to insure that he/she has avoided
including characters who are clearly identifiable with living
people. For example, if the story's main character is clearly
identifiable as the author's mother through either dress,
personality characteristics or situations, and she feels she has
been represented in a negative light that damages her reputation,
she has grounds to sue the film for defamation even if the
character's name has been changed.

The Filmmaker is advised to i) submit what the Filmmaker intends
to be the final version of the script to a reputable script
clearance company and (ii) follow the recommendations of the
clearance company and make any suggested changes to the script.
Further, the Filmmaker should submit this report to the Filmmaker's
attorney for analysis and then follow the recommendations, if any,
of the attorney.

Unless the Film is an unpublished original not based on any
other work, prior to the commencement of filming, a copyright
report should be obtained from a recognized service for all
underlying works. Both domestic and foreign copyrights and renewal
rights should be checked for all underlying works.

If the Film involves actual events, the script-writer should
deliver a fully annotated script to Filmmaker's counsel for review
along with copies of all source material (e.g. newspaper reports,
books, articles, court transcripts, interviews with witnesses,
etc.).

The origins of the Film and the artistic/animated element in the
Film should be ascertained - basic idea, sequence of events and
characters, and, if applicable, animation elements, for the
purpose, among others, of avoiding copyright and idea submission
claims. It should be ascertained if submissions of any similar
properties have been received by the Filmmaker or anyone else
involved in the production and, if so, Filmmaker must be able to
show the circumstances as to why the submitting party may not claim
theft or infringement.

The Filmmaker should consider registering the script with the
Writers Guild of America. For more information go to
www.wga.org

Talent and Other Agreements. Written agreements must
exist between the Filmmaker and all creators, authors, writers,
composers, performers and any other persons providing material
(including quotations from copyrighted works) or on-screen
services. If Filmmaker does not have such an agreement, Filmmaker
should contact its legal counsel.

Title Selection. Prior to final title selection, a title
report should be obtained from a recognized service to ensure that
the proposed title is clear to use. Some companies that provide
title reports are: Thomson & Thomson: (800) 356-8630 Dennis
Angel: (914) 472-0820

Prior to or During Filming

Publicity/Privacy Releases from All Individuals. Whether
the Film is fictional or factual, it should be made certain that no
names, faces, likenesses, or other indicia of identity of any
recognizable living persons are used are depicted unless written
releases have been obtained. A release is unnecessary if a person
is part of a crowd scene or shown in a fleeting background. Dead
persons (through their personal representatives or heirs) may have
a "right of publicity" claim under certain circumstances
(particularly involving commercial exploitation outside of the Film
itself). Furthermore the family and/or successors of deceased
persons may under the laws of certain foreign jurisdictions have
the right to bring actions akin to defamation. Clearances should be
obtained for the right to portray deceased persons unless the
Filmmaker's counsel has concluded that the law clearly does not
require such releases.

Trademark/Product and Business Releases. The same
principle is generally applicable to the names, logos and other
indicia of identity of business and other entities. Telephone books
or other sources should be checked when necessary, to identify if
any real businesses and/or individuals have the same name as the
fictional business and individuals in the Film (and, if so, those
names should be changed).

Releases in General. All releases must give the Filmmaker
the right to edit, add to and/or delete material, juxtapose any
part of the Film with any other film or work, change the sequence
of events that the Filmmaker deems appropriate. Releases should
include an express waiver of defamation, libel and waiver of
privacy claims. If a minor gives consent, the Filmmaker and its
counsel must be able to verify and confirm that the consent is
legally binding on the minor, or secure an appropriate parental
guarantee after determining that the guaranteeing parent[s] is/are
clearly credit worthy.

Music. If music is used, the Filmmaker must obtain all
necessary synchronization and public performance licenses from
copyright proprietors of music and lyrics. Licenses must also be
obtained on pre-recorded music from the owner of the master as well
as from the copyright proprietors of the music and lyrics. Music is
complicated. These rights are often owned or controlled by
different entities (such as a publishing company and a record
company).

• A license to incorporate a composition into a film is known as
a "synch" license. • A license to use a particular sound recording
is known as a "master use" license. • A license to a composition
does not include a license to a sound recording of it, and vice
versa.

Depending on the terms of any agreement Filmmaker signs with
IndieProducer LLC, Filmmaker will need the appropriate music
rights. The Filmmaker is strongly encouraged to obtain all such
rights as early as possible, and before Filmmaker incorporates any
music in the Film. The Filmmaker should assume obtaining rights to
music from established bands will be complex and expensive. The
Filmmaker should consider working with unsigned bands and/or music
stock sources that provide music and licenses. All agreements need
to be closely reviewed by Filmmaker counsel to ensure the proper
rights are being granted. Filmmaker should also consider an
inexpensive back up if Filmmaker cannot obtain the rights to the
music desired.

Location Releases. If distinctive locations, buildings,
businesses, personal property or products are filmed, written
releases should be secured. This is not necessary if
non-distinctive background use only is made of real property,
provided the filming is from a publicly owned area or an area on
which the Filmmaker has the right to be. If Filmmaker's counsel has
concluded that the law clearly does not require such releases, the
Filmmaker must be able to provide written support for such
conclusion.

Material Used On Set. If in the set dressing (including,
without limitation, any props, no matter how inconsequential) or in
any other manner, pre-existing material is used which may be
protected by copyright, such as paintings, photographs, art
objects, articles, book covers, magazines, newspapers, and even
items of décor such as wallpaper (and the list could go on for
pages) the written consent of the copyright proprietor of any such
material must be secured. Note that the permission of the owner of
the original or of a duplicate of the physical material is not
sufficient. Thus a release to film in a particular location is not
sufficient to cover the use of any artwork which may be present in
that location - the permission of the copyright proprietor of that
artwork is mandatory. Sometimes the "fair use" defense will apply,
however Filmmaker should never rely on this limited defense without
consulting an experienced attorney.

Shooting Script. Shooting script should be checked to
assure compliance with all of the above. Since during actual
production individuals, dialogue, and/or other matters may be added
which were not originally contemplated in the shooting script,
checking procedures should be followed until the Film is
locked.

Film and Audio Clips. Film and audio clips are dangerous
unless licenses and authorizations for the second use are obtained
from not only from the owner of the clip or party authorized to
license the same, but also from all persons rendering services on,
or supplying material contained in, the film clip; e.g., underlying
literary rights, performances of actors or musicians. Special
attention should be paid to music rights as publishers are taking
the position that new synchronization and performance licenses are
required when clips are used. In addition, use of clips often
implicates re-use and residual payment obligations to guilds and
unions.

If you cannot obtain a release for one of the items listed
above, we strongly suggest that you DO NOT USE THE ITEM IN
CONNECTION WITH YOUR FILM. There are many other substitutes
available. If your film is not cleared, it will greatly decrease
the likelihood that you will obtain distribution for your film.
Ever.

After Filming

Copyright Registration. Filmmaker should register his or
her Film with the US Copyright Office using form PA. The script can
and should also be separately registered. Go to
http://lcweb.loc.gov/copyright.

Chain of Title Recordation. Filmmaker should record with
the US Copyright Office any documents evidencing any change in
ownership from the original author of the Film to the finished Film
to be licensed by Filmmaker.

For example, assume Bob wrote the script and the film was
produced by a partnership made up of Bob and Mary. Chain of title
in the film would be shown by (1) a certificate of authorship
signed by Bob indicating that the script is original, written by
Bob, and that no rights have previously been granted, (2) a
copyright certificate in Bob's name for the script, (3) an
assignment or other written transfer of the right to make a film
based on the script from Bob to the partnership, and (4) a
copyright certificate for the film registered in the name of the
partnership. This may seem like a hassle, but it is typically
required for any television or theatrical distribution.

Insurance. Filmmakers should seriously consider obtaining
E&O insurance since they will remain liable for any claims that
arise. E&O insurance is meant to protect the insured (i.e. the
Filmmaker) from third parties claims that arise in connection with
the Film, such as violations of publicity/privacy rights or
copyrights. In addition to the information above and advice from
Filmmaker's own attorney, there are several books that may provide
further assistance, including "Clearance & Copyright:
Everything the Independent Filmmaker Needs to Know" by Michael C.
Donald (Silman-James Press) and "Getting Permission: How to License
and Clear Copyrighted Materials Online & Off" by Richard Stim
(Nolo Press).